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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. 533089
Regular Panel Decision
Oct 07, 2021

Matter of Barden v. General Physicians PC

Claimant, a patient services representative, sought to amend her workers' compensation claim to include left shoulder aggravation after a work-related injury to her right shoulder. The Workers' Compensation Board disallowed this request, finding that claimant failed to provide sufficient credible medical evidence to establish a causal relationship between her employment and the left shoulder condition. The Appellate Division, Third Department, affirmed the Board's decision. The court noted that the claimant's treating physician opined the left shoulder pathology was largely preexisting and unrelated to the work injury, and other medical opinions either lacked sufficient weight or were based on inaccurate information, providing no basis to disturb the Board's finding.

Workers' CompensationShoulder InjuryCausationMedical EvidencePreexisting ConditionAppellate ReviewBoard DecisionClaim AmendmentPatient Services Representative
References
10
Case No. MISSING
Regular Panel Decision
Apr 07, 1988

De Coste v. Champlain Valley Physicians Hospital

Decedent, Darwin A. De Coste, experienced chest pain and elevated blood pressure, leading him to Champlain Valley Physicians Hospital where he was seen by Dr. William Amsterlaw. Amsterlaw diagnosed reflux esophagitis despite an abnormal electrocardiogram, discharging De Coste, who subsequently suffered a fatal cardiopulmonary arrest 12 hours later. The administrator of De Coste's estate filed a wrongful death action, alleging medical malpractice and that the misdiagnosis was the proximate cause of death. A jury awarded pecuniary damages and funeral expenses, which the defendants appealed. The appellate court affirmed the verdict, finding rational support for the jury's malpractice finding and rejecting the defendants' argument to reduce the award by Social Security benefits due to the effective date of CPLR 4545 (c).

Medical MalpracticeWrongful DeathProximate CauseCollateral Source RuleCPLR 4545Jury VerdictEmergency Room CareMisdiagnosisArteriosclerosisMyocardial Infarction
References
3
Case No. MISSING
Regular Panel Decision

Tesillo v. Emergency Physician Associates, Inc.

Manuel Tesillo sued Emergency Physician Associates, Inc. (EPA) for medical malpractice, alleging vicarious liability for the negligence of Dr. William C. Shepherd, an emergency physician at Schuyler Hospital. EPA moved for summary judgment, arguing Dr. Shepherd was an independent contractor. The court found material issues of fact regarding the extent of EPA's control over Dr. Shepherd and its managerial obligations to the Emergency Department, which could establish an employer-employee relationship despite contractual terms. Consequently, the court denied EPA's motion for summary judgment, indicating that the determination of Dr. Shepherd's employment status requires further discovery and possibly a trial.

Medical MalpracticeVicarious LiabilityRespondeat SuperiorIndependent ContractorAgency by EstoppelSummary JudgmentPhysician NegligenceEmergency DepartmentControl TestMaterial Issues of Fact
References
18
Case No. MISSING
Regular Panel Decision

Schairer v. Schairer

The wife filed a motion to disqualify the law firm of Sari Friedman, P.C. from representing her husband in their ongoing divorce proceedings, citing a conflict of interest. This conflict stemmed from Ms. Friedman's prior representation of the court-appointed custody forensic expert in his own divorce case in 1995. The husband cross-moved to disqualify the same forensic expert, alleging potential bias against police officers and Ms. Friedman's previous representation of the expert. The court found a clear appearance of a conflict of interest, as Ms. Friedman could not effectively cross-examine her former client, the expert, without potentially using privileged confidential information. Consequently, the court granted the wife's motion to disqualify Sari Friedman, P.C. and denied the husband's cross-motion, determining that any claims of bias against the expert could be addressed during trial.

DivorceAttorney DisqualificationConflict of InterestForensic ExpertCustodySpousal DisputeProfessional EthicsConfidentialityLegal RepresentationJudicial Opinion
References
10
Case No. MISSING
Regular Panel Decision
Dec 12, 2005

Sassower-Berlin v. Berlin

This case details an appeal by the Law Guardian for the children and the father from a Family Court order in Nassau County, entered December 12, 2005. The underlying proceeding aimed to modify a 2001 divorce judgment that had terminated the mother’s visitation rights. Appellants sought to vacate orders directing forensic examinations of the father and children, and to summarily dismiss the modification proceeding. The appellate court dismissed the appeal concerning one child as academic. It found the order for the father's examination erroneous but affirmed the discretion to order children's evaluations. However, in exercising its own discretion, the court granted the motion to vacate the forensic examinations for the minor children due to their opposition and prior trauma. The court denied the motion to summarily dismiss the mother's petition, allowing it to proceed to a hearing.

Child visitationDivorce judgment modificationForensic examinationsMental health evaluationAppellate reviewFamily Court ActChildren's welfareJudicial discretionLaw GuardianChildren's wishes
References
7
Case No. MISSING
Regular Panel Decision

Miccoli v. W.T.

The Nassau County District Attorney's Office sought an order to authorize doctors and staff at Kirby Forensic Psychiatric Center to communicate directly with the DA regarding W.T.'s treatment and care. This was in preparation for a CPL 330.20(8) hearing to determine if W.T. is dangerously mentally ill. The court denied the application without prejudice, ruling that the DA failed to demonstrate that W.T.'s existing medical records, which they already possessed, and the option for an independent psychiatric examination were insufficient. The court emphasized that the hearing is a civil proceeding, and W.T. did not waive his privacy rights by requesting it, highlighting the greater protections afforded by Mental Hygiene Law § 33.13(c)(1) over federal privacy rules, which requires a finding that the interests of justice significantly outweigh the need for confidentiality.

Mental Hygiene LawCriminal Procedure LawPatient ConfidentialityPsychologist-Patient PrivilegeCivil CommitmentDangerous Mental IllnessDue Process RightsWaiver of PrivilegeForensic Psychiatric CenterDistrict Attorney Authority
References
11
Case No. MISSING
Regular Panel Decision

Choi v. State

The petitioner, a physician, initiated a CPLR article 78 proceeding to challenge a determination by the Commissioner of Education to suspend his medical license. The charges of professional misconduct stemmed from prior findings by the Department of Social Services (DSS) and the Department of Health (DOH) regarding unacceptable patient care, inappropriate treatment, excessive testing, and operating a clinical laboratory without a permit. The Regents Review Committee, utilizing an expedited procedure, found the petitioner guilty of two specifications based on the DSS determination and recommended a two-year license suspension, with a partial stay and probation. The court affirmed the Commissioner's determination and dismissed the petition, rejecting the petitioner's arguments against the application of collateral estoppel, the propriety of the expedited procedure, and the claim of ineffective assistance of counsel in the preceding administrative hearings. The court also upheld the penalty imposed, deeming it not excessive or an abuse of discretion.

Professional MisconductPhysician License SuspensionCPLR Article 78Collateral EstoppelExpedited ProcedureIneffective Assistance of CounselDepartment of Social ServicesDepartment of HealthAdministrative LawProfessional Regulation
References
4
Case No. ADJ2745839 (AHM 0136320)
Regular
Dec 15, 2008

Linda Kiehlmeier vs. CALIFORNIA EMERGENCY PHYSICIAN, TRAVELERS ORANGE

This case involves a physician's assistant claiming cumulative industrial injuries from 2000-2006. The WCAB granted reconsideration to clarify temporary disability indemnity, affirming the finding of injury but amending the benefit period and rates for temporary total disability. The applicant will receive benefits starting January 1, 2008, with adjusted weekly amounts for different periods, crediting the defendant for benefits already paid.

Petition for ReconsiderationCumulative Industrial InjuryPhysician's AssistantTemporary DisabilityMaximum RatePanel QMEAquatic TherapyTempurpedic MattressRetroactive BenefitsReport and Recommendation
References
0
Case No. ADJ916063 (VNO 0541860)
Regular
Mar 10, 2011

TERRY SCUDDER vs. VERIZON CALIFORNIA, INC.; Permissibly Self-Insured, Administered by SEDGWICK CMS

This case concerns an applicant who sustained industrial injuries and pre-designated a physician outside of the employer's established Medical Provider Network (MPN). The applicant's attorney subsequently referred him to physicians outside the MPN, whose reports were admitted by the WCJ. The Appeals Board overturned this, ruling that only the pre-designated physician, or referrals from that physician, could be outside the MPN and that referrals by an attorney were invalid. Consequently, the reports of these outside physicians were inadmissible, and the issues decided based on them were returned for further proceedings.

Workers' Compensation Appeals BoardMedical Provider NetworkMPNPre-designationTreating PhysicianQualified Medical EvaluatorQMEPermanent and Stationary DateApportionmentSelf-Procured Medical Treatment
References
1
Case No. ADJ3206000 (LAO 0877236)
Regular
Aug 10, 2012

JENNIFER HESTER vs. TECHNICOLOR, Permissibly Self-Insured

The applicant sought reconsideration of a decision limiting the defendant's payment for hip surgery to the Official Medical Fee Schedule, which the applicant's surgeon deemed insufficient. The Appeals Board granted reconsideration due to the complex fee dispute, noting that while extraordinary circumstances existed regarding the surgeon's qualifications, the reasonableness of his requested fee was unproven. To resolve this, the Board ordered the appointment of an agreed physician to investigate the surgeon's usual fee and its reasonableness compared to others with similar expertise.

ReconsiderationFindings of FactAgreed PhysicianMedical TreatmentFee ScheduleExtraordinary CircumstancesUsual FeeHip ArthroscopyOsteoplastyChondroplasty
References
1
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